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Rangel v. Boehner

United States District Court, D. Columbia

December 11, 2013

JOHN A. BOEHNER, et al., Defendants

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For CHARLES B. RANGEL, Plaintiff: Jay Goldberg, LEAD ATTORNEY, New York, NY.

For JOHN BOEHNER, KAREN L. HAAS, JO BONNER, ZOE LOFGREN, Defendants: Kerry William Kircher, LEAD ATTORNEY, Christine Marie Davenport, Eleni Maria Roumel, Mary Beth Walker, Todd Barry Tatelman, William Bullock Pittard, IV, U.S. HOUSE OF REPRESENTATIVES, Office of the General Counsel, Washington, DC.


For R. BLAKE CHISAM, Defendant: John Martin Faust, LEAD ATTORNEY, LAW OFFICES OF JOHN M. FAUST, PLLC, Washington, DC.

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JOHN D. BATES, United States District Judge.

Before the Court is [14] defendants' motion to dismiss plaintiff Charles Rangel's complaint, which seeks injunctive and declaratory relief related to his censure by the United States House of Representatives. Defendants have responded with a motion to dismiss plaintiff's complaint on five grounds: standing, the political question doctrine, immunity under the Speech or Debate Clause of the U.S. Constitution, failure to state a claim, and discretionary dismissal under the Declaratory Judgment Act or under the doctrine of equitable discretion. The Court will grant defendants' motion to dismiss on the first three of those grounds.


This case results from the United States House of Representatives' censure of Representative Charles Rangel (" Rangel" ). Rangel is the U.S. Representative for New York's 13th congressional district. Currently the third-longest-serving member of the House, Rangel has been serving for over forty years: he was first elected in 1970 and has been re-elected in every congressional election since. From 2007 to 2010, Rangel, a Democrat, was the Chairman of the House Ways and Means Committee (" Ways and Means" ). Rep. on the Legis. & Oversight Activities of the Comm. on Ways & Means During the 112th Cong. at 131 (Comm. Print May 31, 2012) (" Ways and Means Rep." ).[1]

In 2008, Rangel began facing an increasing swell of allegations that he had engaged in impropriety. Those allegations involved certain failures to report income on federal tax returns and on House financial disclosure forms; failures to pay tax on rental income from a Caribbean villa; the use of rent-stabilized apartments in Manhattan for his campaigns in contravention of state and city regulations; and the improper solicitation of donations for an academic center that will house his papers and bear his name. Rep. of the Comm. on Standards of Official Conduct, In the Matter of Rep. Charles B. Rangel, H. Rep. No. 111-661, vol. I, at 147, 267 (Nov. 29, 2010) (" Ethics Comm. Rep." ).[2] Answering the growing clamor, Rangel requested that the House Ethics Committee investigate the allegations, which it agreed to do. Id. at 258, 266, 644. The Ethics Committee established an investigative subcommittee and reauthorized it when the 111th Congress began. Id. at 258, 428-29; Statement of the Chair and Ranking Republican Mem. of the [Ethics] Comm. (Feb. 10, 2009).[3]

After conducting an extensive investigation, which included witness interviews, document review, and subcommittee meetings, the investigative committee adopted and transmitted to the full Ethics Committee a thirteen-count Statement of Alleged Violation, detailing the misconduct allegations. Ethics Comm. Rep., vol. I, at 284, 287, 428. In response, the Ethics Committee convened an adjudicatory subcommittee, which held an adjudicatory hearing in November 2010. Id. at 260, 364. Concluding that eleven of the thirteen counts

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in the Statement of Alleged Violation were established by " clear and convincing evidence," the adjudicatory subcommittee then sent its report to the full Ethics Committee, which in turn held a hearing to consider what sanction to recommend that the House impose. Id. at 2, 6-14, 396-405, 429-99, 618-89. Following that hearing, the Ethics Committee presented its proposed sanction-- censure--to the full House. Id. at 2, 680-81. After debate, the House voted to adopt the Ethics Committee's recommendation: Rangel then stood in the well of the House while then-Speaker Nancy Pelosi read the text of the censure resolution. 156 Cong. Rec. H7891-99 (daily ed. Dec. 2, 2010). In the normal course of the House's day-to-day proceedings, the Clerk of the House prepared a report of the day's events--including a description of the censure proceedings--for inclusion in the House Journal. J. of the H.R. ¶ ¶ 116.25-.27 (Dec. 2, 2010). The Speaker pro tempore approved the Journal, and thus Rangel's censure became part of the House Journal. Like much of Congress's business, portions of the proceedings were broadcast on C-SPAN. See, e.g., Debate on and Censure of Rep. Charles Rangel (Dec. 2, 2010).[4]

Had that been the end of the matter, this case might not have been filed. But several months later, a memorandum purportedly written by the chief counsel of the Ethics Committee, who is a defendant here, was posted on, a political journalism website. See John Bresnahan, Did ethics staff taint Maxine Waters Probe?, Politico (July 18, 2011) [5]; Compl. Ex. A (" Chisam Memorandum" ). In Rangel's view, that memorandum contains explosive allegations that, if true, significantly undermine the integrity of his censure proceedings. The memorandum addressed, in relevant part, purported ex parte communications between staffers and certain members of the adjudicatory committee during his disciplinary proceedings. Chisam Memorandum at 5-7. Rangel also believes that had the chief counsel notified him of the alleged improprieties before his sanctions hearing concluded, he would have moved to dismiss the proceedings--and, in his view, the House would have done so, precluding the censure altogether. Hence, after the memorandum came to light, he moved the Ethics Committee to " withdraw its actions" in his disciplinary proceedings, which the committee declined to do. Compl. Ex. I. Rather than seek redress from the full House, Rangel filed this action against: (1) the current Speaker of the House, Representative John Boehner; (2) the current Clerk of the House, Karen Haas; (3) the Chairwoman of the Ethics Committee during the 111th Congress, Representative Zoe Lofgren; (4) the Ranking Member of the Ethics Committee during the 111th Congress, Representative Jo Bonner; (5) four more members of the adjudicatory subcommittee, Representatives Michael T. McCaul, K. Michael Conaway, Charles W. Dent, and Gregg Harper; and (6) three staffers who worked for the Ethics Committee during the 111th Congress, R. Blake Chisam, C. Morgan Kim, and Stacey Sovereign. Compl. ¶ ¶ 9-26. Rangel has not sued the institution that censured him, the House of Representatives itself.

Some other background information is relevant to defendants' motion to dismiss. During the investigative phase of the proceedings, Rangel voluntarily stepped down as Chairman of the Ways and Means Committee, while retaining his membership on the committee. Letter from the Hon.

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Charles B. Rangel to the Hon. Nancy Pelosi (Mar. 3, 2010) (" Rangel Letter" ).[6] In 2010, the House flipped from majority Democrat to majority Republican, which resulted in lost seats on Ways and Means for House Democrats--including the Chair. Even so, after being re-elected in 2010, and again in 2012, Rangel was reassigned to the Ways and Means Committee. See Ways and Means Rep. at II. Rather than being members of any of the subcommittees, the Chair and Ranking Member of that committee were deemed " ex-officio Members" of all subcommittees. See Rules of the Comm. on Ways & Means, Rule 9 (112th Cong.) (" Ways and Means Rules" ).[7] Rangel alone was also deemed an ex-officio member of all Ways and Means subcommittees in the 112th Congress. See Ways and Means Rep. at X n.1. Although his status as only an ex-officio member would have precluded his voting on any subcommittee matter, in the 112th Congress every vote was taken at the full committee level. See generally id. at 11-93.

Rangel faced primary challengers in the 2012 election. Unsurprisingly, one opponent attempted to make hay out of the censure by wrongly asserting that Rangel no longer had " the ability to vote on his own committee anymore." Compl. Ex. K. The primary challenges were ultimately unsuccessful; Rangel defeated all of his opponents despite that particular bit of mudslinging.

Based on what he views as procedural irregularities in the course of his disciplinary proceeding in the House, Rangel seeks the following relief: a declaratory judgment to some unclear effect that, as best the Court can discern, the House must abide by its own rules before censuring one of its own; [8] an injunction requiring defendants to " take all necessary steps to vacate, strike and remove the recording of censure, as voted on by the House and as set forth in the Journal" ; [9] and an " Order or Writ in the nature of mandamus" that requires the Speaker and the Clerk of the House " to cause to be removed from The Journal of the House's Proceedings, any reference to the fact that Plaintiff had been censured." Compl. ¶ 108.


Defendants assert five grounds for dismissal, arguing that: (1) Rangel lacks standing

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to bring his claims; (2) Rangel's claims present nonjusticiable political questions; (3) defendants are absolutely immune from suit under the Speech or Debate Clause, U.S. Const. Art. I, § 6, cl. 1; (4) Rangel fails to state a claim upon which relief can be granted; and (5) even if the Court had jurisdiction and Rangel has stated a claim, the Court should exercise its discretion not to reach the merits of his suit. See Defs.' Mot. to Dism. [ECF No. 14] (" Def.'s Mot." ) 4. The first two grounds challenge this Court's subject-matter jurisdiction and therefore will be evaluated under Federal Civil Rule 12(b)(1); the last three grounds will be evaluated under Rule 12(b)(6). See Haase v. Sessions, 835 F.2d 902, 906, 266 U.S.App.D.C. 325 (D.C. Cir. 1987) (stating that " the defect of standing is a defect in subject matter jurisdiction" ); Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262, 371 U.S.App.D.C. 242 (D.C. Cir. 2006) (explaining that a dismissal under the political question doctrine constitutes a dismissal for lack of subject-matter jurisdiction and " not an adjudication on the merits" ).

Although courts examining a Rule 12(b)(1) motion to dismiss--such as for lack of standing--will " construe the complaint in favor of the complaining party," see Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the " 'plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim," Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Because the elements necessary to establish jurisdiction are " not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof; i.e., with the manner and degree of evidence required at successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, so long as the court accepts the factual allegations in the complaint as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54, 365 U.S.App.D.C. 270 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3, 326 U.S.App.D.C. 67 (D.C. Cir. 1997).

To survive a motion to dismiss under Rule 12(b)(6), a complaint need only contain " 'a short and plain statement of the claim showing that the pleader is entitled to relief,'" such that the defendant has " 'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must supply " more than labels and conclusions" or " a formulaic recitation of the elements of a cause of action" to provide the " grounds" of " entitle[ment] to relief." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Instead, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681, 386 U.S.App.D.C. 144 (D.C. Cir. 2009). A complaint is considered plausible on its face " when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. This amounts to a " two-pronged approach," under which a court first identifies the factual allegations that are entitled to an assumption of truth and then determines " whether they plausibly give rise to an entitlement to relief." Id. at 679.


Defendants challenge Rangel's suit on three separate grounds that would each preclude the Court from reaching the merits of his claims: standing; the political question doctrine; and absolute immunity under the Speech or Debate Clause. The Court addresses each argument in turn.


Before this Court may entertain the merits of his claims, Rangel must establish that he has the requisite standing to sue. See Lujan, 504 U.S. at 560-61. Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court--Rangel in this case--bears the burden of establishing that the court has jurisdiction to hear his claims. See U.S. Ecology, Inc. v. United States DOI, 231 F.3d 20, 24, 343 U.S.App.D.C. 386 (D.C. Cir. 2000); Grand Lodge, 185 F.Supp.2d at 13 (explaining that a court has an " affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority" ). Standing is a " threshold question in every federal case." Warth, 422 U.S. at 498. Article III of the U.S. Constitution " limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies,'" Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and the doctrine of standing serves to identify those " 'Cases' and 'Controversies' that are of the justiciable sort referred to in Article III" and which are thus " 'appropriately resolved through the judicial process,'" Lujan, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). " In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth, 422 U.S. at 498. To establish the " irreducible constitutional minimum of standing," a plaintiff must allege (1) an " injury in fact" which is " (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical" ; (2) " a causal connection between the injury and the conduct complained of" ; and (3) a likelihood " that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61 (internal quotation marks and citations omitted). The Supreme Court has stressed that the standing inquiry is " 'especially rigorous' when reaching the merits of a case would raise questions about the proper scope of judicial authority" --in other words, in a case raising important separation-of-powers concerns. Chenoweth v. Clinton, 181 F.3d 112, 115, 337 U.S.App.D.C. 1 (D.C. Cir. 1999) (quoting Raines v. Byrd, 521 U.S. 811, 819-20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). " As the Supreme Court has observed, the power to declare actions of the other branches unconstitutional should be 'a tool of last resort' because it 'is . . . the ultimate threat to the continued effectiveness of the federal courts in performing that role.'" Walker v. Cheney, 230 F.Supp.2d 51, 65 (D.D.C. 2002) (quoting Valley Forge, 454 U.S. at 474). Rangel appears [10]

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to assert four injuries: reputational harm resulting from the censure; a loss of status on House Ways and Means subcommittees; political exploitation of the censure; and an amorphous due process injury based on the conduct of certain defendants during the events leading up to his censure. None of these will support Article III standing.

A. Rangel Does Not Have Standing Based On The Alleged Injury To His Reputation

Rangel alleges that " [t]he House's action and the censure recorded in the permanent record of The Journal of the House's Proceedings [. . .] have [caused] and will cause Plaintiff reputational harm, plus public stigmatization [. . .] which is fairly and directly traceable to the [censure]." Compl. ¶ 86. " [I]njury to reputation can constitute a cognizable injury sufficient for Article III standing." Foretich v. United States, 351 F.3d 1198, 1211, 359 U.S.App.D.C. 54 (D.C. Cir. 2003) (citing Meese v. Keene, 481 U.S. 465, 473-77, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987)). Defendants respond, however, that Rangel's claim of reputational injury is insufficiently concrete and particularized. But it is beyond peradventure that being censured by the U.S. House of Representatives concretely and particularly harms a sitting Member's reputation, particularly a Member like Rangel who has demonstrated a desire to remain in the House. Foretich, 351 F.3d at 1213 (" [W]here reputational injury derives directly from an unexpired and unretracted government action, that injury satisfies the requirements of Article III standing to challenge that action." ).[11] Accordingly, Rangel has sufficiently alleged an Article III injury-in-fact.

That is not the end of the matter, however. Rangel must also show that defendants caused his reputational injury and that this Court can redress it by granting the relief he requests. Lujan, 504 U.S. at 560-61. To demonstrate causation, Rangel must show that the reputational harm " is fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Lujan, 504 U.S. at 560-61 (citing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). As defendants point out, Rangel has not sued the House itself. Despite his contention that defendants' argument on this point is " fruitless wordplay," Pl.'s Opp'n to Defs.' Mot. to Dism. [ECF No. 15] (" Pl.'s Opp'n" ) 26, Rangel's choice of defendants has real consequences for his ability to demonstrate causation. The reputational harm he suffered resulted from " [t]he House's action and the censure recorded in the permanent record of The Journal of the House's Proceedings." Compl. ¶ 86. Ultimately, it was the " independent action" (the censure) " of [a] third party not before the court" (the House) that caused harm to Rangel's reputation. Lujan, 504 U.S. at 560-61; Compl. ¶ 86. Four of the defendants were not Members of the House at the time and thus did not vote to censure Rangel: the three committee staff defendants, Mr. Chisam, Ms. Kim, and Ms. Sovereign, were staff members,

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and Ms. Haas was (and is) the Clerk of the House. Plainly, they did not censure Rangel. The other seven defendants were, and in most cases still are, Members of the House. But individual Members are not responsible for the actions of the House as an institution, just as they cannot " represent the interests of an entire House or all of Congress." Kucinich v. Bush, 236 F.Supp.2d 1, 11 (D.D.C. 2002). " Power is not vested in any one individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or number of members, but the action of the body as a whole." United States v. Ballin, 144 U.S. 1, 7, 12 S.Ct. 507, 36 L.Ed. 321 (1892). Thus, for the purposes of Article III, Rangel's reputational harm was not caused by any of the defendants but by the House as an independent body--and it is not a party to this action.

Rangel counters that but for defendants' actions--excluding the Speaker and the Clerk, whom he sues only because of their purported capacity to provide relief--he would not have been censured. See Compl. ¶ ¶ 9-11. Rangel's argument is as follows: if he had been notified that the staffers and certain members had had improper ex parte communications, he would not have left the hearing and he would have moved to dismiss the proceedings; if he had moved to dismiss, the Committee would have granted his motion because of the misconduct; if the Committee had instead denied his motion, the House still would not have censured him; if the House had not censured him, he would not have suffered any reputational harm based on his own misconduct ... and so on. This type of speculative and attenuated causation is not sufficient under Article III. Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1150, 185 L.Ed.2d 264 (2013) (" We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors." ); Allen v. Wright, 468 U.S. 737, 759, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (" The links in the chain of causation between the challenged . . . conduct and the asserted injury are far too weak for the chain as a whole to sustain [plaintiffs'] standing." ); Simon, 426 U.S. at 33-34, 41 (injury caused by a hospital, when the hospital was not a defendant, was insufficient to support standing). Whether the Committee would have granted his motion to dismiss based on the purported misconduct is entirely speculative. Whether, if the Committee had denied his motion, the House would not have censured him, is as well. Rangel " cannot rely on speculation about the unfettered choices made by independent actors not before the court," such as the Ethics Committee and the House itself. Clapper, 133 S.Ct. at 1150 n.5 (internal quotation marks omitted). Hence, because he cannot establish that the alleged misconduct by defendants caused his reputational harm, Rangel does not have Article III standing.

Even if Rangel could satisfactorily demonstrate causation, he cannot show redressability. Lujan, 504 U.S. at 561 ( requiring a likelihood " that the injury will be redressed by a favorable decision" ). Assuming that the House reversing course and striking his censure would remedy his reputational harm--although defendants contest this point, too--this Court has no power to issue an order bringing about that result. For the reasons detailed infra, Part II.B, whether the House will rescind his censure and, in Rangel's view, rehabilitate his reputation, depends entirely on the unbridled discretion of the ...

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